UNITED STATES OF AMERICA, PETITIONER V. BARBARA ANN WASHINGTON,
INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR CHRISTA M. WASHINGTON, A
MINOR
No. 89-482
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Reply Brief For The Petitioner
1. Respondent devotes virtually all of her brief in opposition (at
7-22) to the argument that the petition for a writ of certiorari
presents this Court with a question of state law. But this is
precisely what the petition does not do. Rather, we ask this Court to
review an important question of federal law and to remand the case for
consideration of the remaining state law issue under the appropriate
federal standard.
As pointed out in our petition (at 6-8), the decision below is one
of a series of three Ninth Circuit decisions under the Federal Tort
Claims Act in which the liability of the United States has been
predicated solely on the determination that the injury occurred on a
military base and was caused by military personnel acting in violation
of a base regulation. /1/ In none of the three cases did the conduct
of the military personnel occur while they were on duty or relate to
the performance of their military duties. Rather, in each case, the
injuries arose as a result of acts or omissions of the service members
while engaged in personal affairs.
In the first of these cases -- Lutz v. United States -- the Ninth
Circuit based its conclusion on its observation that "(m)ilitary
housing presents a unique situation." 685 F.2d at 1183. In light of
that unique quality, the court concluded, "the employment relationship
of residents of military bases continues even during the off-duty
at-home hours." Ibid. That rationale was expressly relied upon by the
Ninth Circuit both in this case (Pet. App. 5a-6a) and in Doggett v.
United States (875 F.2d at 688).
It is that rationale that we ask this Court to reject because it
constitutes an erroneous application of the Federal Tort Claims Act.
In the first place, in its emphasis on the "uniqueness" of military
bases, the Ninth Circuit ignores both the analogous situations that
arise in the private sector and the clear command of the FTCA that
liability may be based only on a determination that a private person
would be liable in similar circumstances under state law. 28 U.S.C.
1346(b), 2674. Moreover, it disregards the express insistence of
Congress, in 28 U.S.C. 2671, that a military employee is not to be
treated differently from an employee in the private sector; actions
held to be "within the scope of his office or employment" are to be
limited to actions taken in the "line of duty." Finally, by failing to
distinguish between the military's role as administrator of a
community in which service members and their families lead private
lives and its role as employer of the service members themselves, the
court below has effectively made the United States an insurer of
compliance with every rule and regulation governing life on military
bases. No such insurance function was intended by the FTCA's limited
waiver of sovereign immunity.
Once this error has been remedied, the case should be remanded for
application of controlling state law under the proper standard -- a
standard free from any notion that liability can or should be premised
on the "unique" nature of a military base. In our view, the district
court was correct in concluding (Pet. App. 13a-14a) that the outcome
under state law is clear: the United States is not liable for any
negligence in this case under the doctrine of respondeat superior.
But the question of state law is not one that needs to be addressed by
this Court. /2/
2. We indicated in our petition (at 9-11) that the rationale of the
court below -- relying as it did solely on the violation of a base
regulation by the servicemen involved -- was squarely in conflict with
the rationale of the District of Columbia Circuit in Nelson v. United
States, 838 F.2d 1280 (1988). The Ninth Circuit's rationale is now
also in conflict with both the reasoning and the result of the Eighth
Circuit's decision in Piper v. United States, No. 88-2612 (Oct. 10,
1989), reprinted in App., infra, 1a-7a. Like Lutz and Nelson, that
case involved an action against the United States by a dog-bite
victim. The court of appeals, reversing the district court (which had
relied on Ninth Circuit precedent), held that "(w)hile this case
factually resembles the Lutz case, we decline to follow it. Instead
we adopt the reasoning of another similar case, Nelson v. United
States." Id. at 5a. The court then went on to say: "Military bases
regulate a wide variety of subjects, some of them trivial, such as
housekeeping. It stretches the statute too far to say that any act or
omission by a service-member, if covered by a regulation, represents
conduct in the line of duty." Id. at 6a. Finally, the court quoted at
some length from the Nelson opinion, emphasizing that in its capacity
of running what is, in essence, a "company town," the military
"imposes many duties on military personnel, not all of which are
plausibly viewed as imposed by the government in its role as
employer." Ibid. (quoting Nelson, 838 F.2d at 1283). /3/
The question presented in this case could as easily have arisen if
an off-duty service member, while at home, had caused injury by
violating a base regulation prohibiting smoking in bed (see App,
infra, 6a) or banning the attachment of extension cords of
coffeemakers (see Pet. 11 n.11). The question in those instances, as
in this one, is whether the mere existence of a base regulation,
regardless of its nature or function or the circumstances of its
application, makes the United States the insurer of compliance with
that regulation by military personnel. There is a conflict in the
circuits on that question.
For the foregoing reasons, and those stated in the petition, the
petition for a writ of certiorari should be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
NOVEMBER 1989
/1/ The other two decisions are Doggett v. United States, 875 F.2d
684, 688 (9th Cir. 1989) (that part of the opinion dealing with
government liability for the conduct of personnel who were drinking
while off duty), and Lutz v. United States, 685 F.2d 1178 (9th Cir.
1982) (airman's failure to control his pet dog). In Doggett, as in
the present case, the events took place in California; in Lutz, they
took place in Montana.
/2/ As noted in our petition (at 7 n.3), the court below cited only
one state case, at the outset of its discussion, and cited it only for
the general scope of respondeat superior liability under state law.
Moreover, in that case, Jeffrey Scott E. v. Central Baptist Church,
197 Cal. App. 3d 718, 243 Cal. Rptr. 128 (1988), the court held that a
teacher's employer was not liable for the teacher's sexual abuse of a
student. Although the court below never went beyond this citation in
its discussion of state law, respondent attempts in its brief in
opposition to set forth three separate theories for imposing liability
under state law. Like the court of appeals, respondent has failed to
cite a single analogous state case holding a defendant liable in tort.
Respondent's first theory -- that the employment duties of military
personnel extend to compliance with all base rules and regulations --
relies principally on the state's "bunkhouse rule" (see Br. in Opp.
14-15). But that rule was developed in the context of state workers'
compensation laws and has never been applied in the respondeat
superior context. See Martinez v. Hagopian, 182 Cal. App. 3d 1223,
227 Cal. Rptr. 763 (1986), relied on by the district court in this
case (see Pet. App. 14a). Moreover, the California Supreme Court has
emphasized that the tests of liability under workers' compensation law
and tort law are "not identical," and that workers' compensation cases
are therefore "not controlling precedent" in resolving a respondeat
superior question. Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d
962, 967 n.2, 719 P.2d 676, 227 Cal. Rptr. 106, 108 n.2 (1986).
Respondent's second theory -- which relies on an assessment of the
risks inherent in the employer's enterprise -- was squarely held by
the district court to be inapplicable here "because there (was) not a
sufficient nexus between the employment of Cleaves and Bartole (the
servicemen involved) and their act of priming the carburetor." Pet.
App. 13a. Respondent cites no authority under state law that suggests
the contrary in an analogous situation, while the district court's
holding is strongly supported by Martinez.
Finally, respondent's third theory -- that the United States is
directly liable as a landowner on whose property dangerous activities
took place -- is not a theory based on respondeat superior at all. It
was rejected by the district court on the facts of this case (Pet.
App. 14a-15a), and was not adverted to by the court of appeals.
/3/ After holding that the United States was not responsible for
any negligence on the part of the serviceman who owned the dog, the
court in Piper remanded the case to the district court to determine
whether other base personnel may have been negligent in the
performance of their job-related duties.
Appendix